AfricaFocus Bulletin
February 5, 2015 (150205)

(Reposted from sources cited below)

Editor’s Note

“Commercial activities are by far the largest contributor to illicit
financial flows (IFFs), followed by organized crime, then public
sector activities. Corrupt practices play a key role in facilitating
these outflows. The sources of IFFs are from within our continent,
and the fundamental responsibility for eliminating the sources rests
with the governments of African States. Therefore, the Panel calls
for the African Union to take leadership in ensuring that Africa
takes the necessary measures to curtail and indeed eliminate all
avenues for IFFs.” – High Level Panel on on Illicit Financial Flows
from Africa, February 2015

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The evidence on Africa’s losses from illicit financial flows has
been accumulating and gaining greater prominence in recent years, as
has the wider realization that rich countries as well are losing
billions to evasive tax maneuvers and money laundering by large
corporations and the super-rich. See
http://www.africafocus.org/intro-iff.php for talking points and a
number of earlier reports.

What is new about the latest report is not only that it comes from a
panel appointed officially by the African Union and the Economic
Commission on Africa, and that it has now been adopted officially by
the African Union. It is also that it not only reviews the data, but
also proposes specific steps that can be taken by existing African
government agencies, as well as reforms such as enactments of new
requirements for information disclosure both in Africa and around
the world.

Notably, the same technical mechanisms that have been used to track
funds of drug traffickers and terrorist networks can now be used, if
there is political will, to track monies lost to illicit financial
flows and tax evasion.

The report stresses that the largest portion of such flows are based
in common commercial mechanisms such as mispricing of imports and
exports, which can be checked with improvement of customs and trade
monitoring databases. The report called for a crackdown by customs,
tax, business and anti-corruption authorities and emphasized that
African governments must take the lead, with measures that are
practical and can have meaningful effects.

Civil society organizations such as Tax Justice Network Africa,
Action Aid, and Oxfam took part in the launch of the report. But
they stressed that implementation would be the key issue. With this
report having been adopted by African leaders, there are clear
guidelines for action.

Rich countries are also essential to effective action, which
requires such measures as full disclosure of corporate ownership and
sharing tax information.

This AfricaFocus Bulletin contains excerpts from the foreword
by the Panel chair Thabo Mbeki, and from the first section of
recommendations (on the commercial component).

For a good summary of the report, see the Feb. 2 article in The
Guardian (http://tinyurl.com/plqj8kv).

The full 126-page report is available at
http://allafrica.com/view/group/main/main/id/00035250.html

In a Feb 2 article in the Daily Nation (http://tinyurl.com/ms2sqko),
Charles Onyango-Obbo summed up two important implications of the
report: (1) Stopping the activities that bleed Africa through
illicit flows requires smart states, not muscular police and
soldiers. (2) In turn, it means hiring tech-savvy people, and those
who know numbers and the way the new global economy works.

A very clear article detailing how trade mispricing works and can
be checked, using the case of India, appeared in the Indian Express
on Feb. 3 (http://tinyurl.com/ooksj3x).

For previous AfricaFocus Bulletins  on illicit financial flows and
related issues, visit http://www.africafocus.org/intro-iff.php

++++++++++++++++++++++end editor’s note+++++++++++++++++

Report of the High Level Panel on Illicit Financial Flows from
Africa

Commissioned by the AU/ECA Conference of Ministers of Finance,
Planning and Economic Development

Foreword

The 4th Joint African Union Commission/United Nations Economic
Commission for Africa (AUC/ECA) Conference of African Ministers of
Finance, Planning and Economic Development was held in 2011. This
Conference mandated ECA to establish the High Level Panel on Illicit
Financial Flows from Africa. Underlying this decision was the
determination to ensure Africa’s accelerated and sustained
development, relying as much as possible on its own resources.

The decision was immediately informed by concern that many of our
countries would fail to meet the Millennium Development Goals during
the target period ending in 2015. There was also concern that our
continent had to take all possible measures to ensure respect for
the development priorities it had set itself, as reflected for
instance in the New Partnership for Africa’s Development. Progress
on this agenda could not be guaranteed if Africa remained
overdependent on resources supplied by development partners.

In the light of this analysis, it became clear that Africa was a net
creditor to the rest of the world, even though, despite the inflow
of official development assistance, the continent had suffered and
was continuing to suffer from a crisis of insufficient resources for
development.Very correctly, these considerations led to the decision
to focus on the matter of illicit financial outflows from Africa,
and specifically on the steps that must be taken to radically reduce
these outflows to ensure that these development resources remain
within the continent. The importance of this decision is emphasized
by the fact that our continent is annually losing more than $50
billion through illicit financial outflows.

This Report reflects the work that the High Level Panel on Illicit
Financial Flows has carried out since it was established in February
2012, particularly to:

*  Develop a realistic and accurate assessment of the volumes and
sources of these outflows;

* Gain concrete understanding of how these outflows occur in Africa,
based on case studies of a sample of African countries and;

* Ensure that we make specific recommendations of practical,
realistic, short- to medium-term actions that should be taken both
by Africa and by the rest of the world to effectively confront what
is in fact a global challenge.

It would not have been possible for our Panel to do its work without
the enthusiastic support of all our interlocutors as we worked to
discharge our mandate. I would like to take this opportunity to
convey our sincere and warm thanks to all those for everything they
did to contribute to the success of the work of our Panel.

…

Objectively, it is practically impossible to acquire complete
information about illicit financial flows, precisely because of
their illicit nature, which means that those responsible take
deliberate and systematic steps to hide them. This also means that
ECA and everyone concerned should continue to carry out research on
this matter, including making generally available all new relevant
information that will inevitably emerge.

Despite the challenges of information gathering about illicit
activities, the information available to us has convinced our Panel
that large commercial corporations are by far the biggest culprits
of illicit outflows, followed by organized crime. We are also
convinced that corrupt practices in Africa are facilitating these
outflows, apart from and in addition to the related problem of weak
governance capacity.

All this should be understood within the context of large
corporations having the means to retain the best available
professional legal, accountancy, banking and other expertise to help
them perpetuate their aggressive and illegal activities. Similarly,
organized criminal organizations, especially international drug
dealers, have the funds to corrupt many players, including and
especially in governments, and even to ‘capture’ weak states. All
these factors underline that the critical ingredient in the struggle
to end illicit financial flows is the political will of governments,
not only technical capacity.

Further, illicit financial outflows whose source is Africa end up
somewhere in the rest of the world. Countries that are destinations
for these outflows also have a role in preventing them and in
helping Africa to repatriate illicit funds and prosecute
perpetrators. Thus, even though these financial outflows present
themselves to us Africans as our problem, united global action is
necessary to end them. Such united global action requires that
agreement be reached on the steps to be taken to expedite the
repatriation of the illicitly exported capital. This must include
ensuring that the financial institutions that receive this capital
do not benefit by being allowed to continue to house it during
periods when it might be frozen, pending the completion of the
agreed due processes prior to repatriation.

It also means that concrete steps should be taken to give general
universal application to such best practices as might have developed
anywhere in the world. This includes the relevant actions and
initiatives that have been taken by such institutions as the OECD,
the G8 and G20, the European Parliament and the African Tax
Administration Forum.

Correctly, the United Nations is leading the process to engage the
international community to design the Post-2015 Development Agenda,
the successor programme to the Millennium Development Goals. As was
foreseen in the Millennium Development Goals, giving credibility to
the Post-2015 Development Agenda will require realistic expectations
about the availability of resources to finance this agenda – ”a new
and real commitment to the objective of financing for development.

Our Panel is convinced that Africa’s retention of the capital that
is generated on the continent and should legitimately be retained in
Africa must be an important part of the resources to finance the
Post-2015 Development Agenda.

We do not say this to support the entirely false and self-serving
argument against capital transfers from the rich to the poor regions
of the world, including Africa – a historically proven driver of
equitable global development.

Rather, we are arguing that there exists a very significant and
eminently practical possibility to change the balance between the
volumes of domestic and foreign capital required for meaningful and
sustained African development. The radical reduction of illicit
capital outflows from Africa, short of ending them, is precisely the
outcome Africa and the rest of the world must achieve to produce
this strategically critical new balance.

As a Panel we are convinced that the goals of ending poverty in the
world, reducing inequality within and among nations, and giving
practical effect to the fundamental objective of the right of all to
development remain vital pillars in the historic process to build a
humane, peaceful and prosperous universal human society.

We commend this humble Report to our immediate Principals, the
African Finance, Planning and Economic Development Ministers, all
the other African authorities and the people of Africa, as well as
to the rest of the world, as a contribution to what must be an
honest, serious, concerted and sustained African and global effort
to build a better world for all.

Thabo Mbeki, Chairperson

*************************************************************

Recommendations

The recommendations set out here serve as our humble contribution to
addressing the complex issue of the illicit outflows of capital from
Africa. As we noted in the Foreword, despite the challenges of
gathering information about illicit activities, available
information shows that our continent is losing in excess of $50
billion to $60 billion a year through illicit financial outflows.

Commercial activities are by far the largest contributor to illicit
financial flows (IFFs), followed by organized crime, then public
sector activities. Corrupt practices play a key role in facilitating
these outflows. The sources of IFFs are from within our continent,
and the fundamental responsibility for eliminating the sources rests
with the governments of African States. Therefore, the Panel calls
for the African Union to take leadership in ensuring that Africa
takes the necessary measures to curtail and indeed eliminate all
avenues for IFFs.

Although the sources of IFFs are within our Continent, the
mechanisms for moving IFFs often involve non-African private and
public actors and are sometimes the result of policies and laws
adopted by intergovernmental bodies and governments outside our
Continent. It is therefore necessary for African governments to
engage with these non-African actors to ensure that their practices
do not facilitate the illicit outflow of funds from Africa.

The ultimate goal of these recommendations is to eliminate IFFs from
Africa. Given that the international community will shortly launch
the Post- 2015 Development Agenda, the timing of this Report is
fortunate. The Post- 2015 Development Agenda should reflect the
recommendations contained in this Report. Indeed, the Common African
Position on the Post-2015 Development Agenda already calls for
action against IFFs.

The biggest cross-cutting challenge found through our country case
studies is the lack of appropriate capacity to ensure that illicit
outflows are curtailed. In many cases, this does not entail
acquiring additional resources but better using existing capacities.
Take Nigeria, where capacity exists within the Customs Agency, but
the authority to monitor some exports has been transferred to
another agency.

Given that most measurable IFFs are trade based, actions set forth
in the recommendations below for improving capacity and
accountability to curtail trade-related IFFs should be given
primacy. African States should take primary responsibility for
mobilizing resources for tackling trade- related IFFs (and, indeed,
other types of IFFs) from Africa.

A. The commercial component of illicit flows

1. Trade mispricing

African countries should ensure that they have clear and concise
laws and regulations that make it illegal to intentionally
incorrectly or inaccurately state the price, quantity, quality or
other aspect of trade in goods and services in order to move capital
or profits to another jurisdiction or to manipulate, evade or avoid
any form of taxation, including customs and excise duties.

The first step in revenue collection is to ensure that all
corporations, big and small, are registered for tax purposes. In
addition to existing registration requirements, countries may
consider a provision in the respective acts regulating the
registration of companies or small businesses to the effect that no
registration shall take place without proof of tax registration. In
some countries, one cannot open a business bank account without
proof of registration for tax. To avoid unnecessary delays in the
registration of companies, the relevant agencies must have adequate
capacity to process such registrations. We recommend further that
the databases of the companies’ registration office and the tax
authority be linked.

African States’ customs authorities should use available databases
of information about comparable pricing of world trade in goods to
analyse imports and exports and identify transactions that require
additional scrutiny. States should also begin collecting trade
transaction data and creating databases from that information, which
can then be searched and shared with other States so that a more
robust dataset of local and regional comparables is available.

2. Transfer pricing

The ‘arm’s-length principle’ is currently accepted as the
international standard to combat transfer pricing, but its effective
implementation depends on the availability of comparable pricing
data on goods and services. The Panel calls on national and
multilateral agencies to make fully and freely available, and in a
timely manner, data on pricing of goods and services in
international transactions, according to accepted coding categories.

African countries should establish transfer pricing units as a
matter of extreme urgency. These units should be appropriately
situated in revenue authorities and should be well equipped in
accordance with global best practices. Establishing transfer pricing
units may entail the training of a selection of existing revenue
officers in this specialized area. We have been informed that those
African countries that have established transfer pricing units have
been and are willing to continue training other countries’
officials. In this case, a small investment in training can have a
major positive impact on revenue collection.

African States should require multinational corporations operating
in their countries to provide the transfer pricing units with a
comprehensive report showing their disaggregated financial reporting
on a country-by-country or subsidiary-by-subsidiary basis. African
governments could also consider developing a format for this
reporting that would be acceptable to multiple African revenue
authorities.

3. Base erosion and profit shifting

The practice by which multinational corporations shift profits to
subsidiaries in low-tax or secrecy jurisdictions is one of the
biggest single sources of illicit outflows. In many cases, those
subsidiaries exist on paper only, mostly with one or two employees,
while the bulk of the activities of the company occur in another
country. While we recommend that African countries support the OECD-
led response to this problem, which focuses on improving access to
the information of these multinational corporations, we know that
the challenge is a bit more complex for African countries.

We also recommend that there should be an automatic exchange of tax
information among African countries. Africa must strongly call for
an automatic exchange of tax information globally, subject to
national capacity and to maintaining the confidentiality of price-
sensitive business information.

4. Related recommendations

Transparency of ownership and control of companies, partnerships,
trusts and other legal entities that can hold assets and open bank
accounts is critical to the ability to determine where illicit funds
are moving and who is moving them. African countries should require
that beneficial ownership information is provided when companies are
incorporated or trusts registered; such information is updated
regularly; and such information is placed on the public record.
Beneficial ownership declarations should also be required of all
parties entering into government contracts. False declarations
should result in robust penalties.

Double taxation agreements can contain provisions that are harmful
to domestic resource mobilization and can be used to facilitate
illicit financial outflows. We recommend that African countries
review their current and prospective double taxation conventions,
particularly those in place with jurisdictions that are significant
destinations of IFFs, to ensure that they do not provide
opportunities for abuse. The use of the Model Double Taxation
Agreement developed by the African Tax Administration Forum is
recommended for consideration.

Regional integration arrangements should be used to introduce
accepted standards for tax incentives to prevent harmful competition
in the effort to attract foreign direct investment.

African countries are encouraged to join the African Tax
Administration Forum and to provide it with the necessary support,
including giving it political standing in African regional processes
such as the AU/ECA Conference of Ministers of Finance.

The extractive sector is a primary source of IFFs in Africa, but it
is not the only source of IFFs. African countries and companies
operating in extractive industries in Africa should join voluntary
initiatives like the Extractive Industries Transparency Initiative.
Africa should also push for mandatory country-by- country and
project-by-project reporting requirements immediately in the
extractive sectors and in the near term across all sectors.

5. Institutional support for these measures

African States should establish or strengthen the independent
institutions and agencies of government responsible for preventing
IFFs. These include (but are not limited to) financial intelligence
units, anti-fraud agencies, customs and border agencies, revenue
agencies, anti-corruption agencies and financial crime agencies. All
such agencies should render regular reports on their activities and
findings to national legislatures.

African States should create methods and mechanisms for information
sharing and coordination among the various institutions and agencies
of government responsible for preventing IFFs, with such
coordination being led by the country’s financial intelligence unit.

Banks and financial institutions have a major role in preventing and
eliminating IFFs. Robust regimes should be put in place for the
supervision of banks and nonbank financial institutions by central
banks and financial supervision agencies. Such regimes must require
mandatory reporting of transactions that may be tainted with illicit
activity.

[See full report for additional recommendations.]

*****************************************************

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providing reposted commentary and analysis on African issues, with a
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